Dr. Pete Sarsfield was surprised with word Tuesday that the Ministry of the Attorney General of Ontario has applied to dismiss a decision by the Health Services Appeal and Review Board in February which stated the medical officer of health overstepped his authority when he issued a smoking ban in the Kenora-Rainy River districts.
“I thought the game was over,” Dr. Sarsfield said this morning. “We’d attempted to take action against a proven health hazard. The ref made a bad call and that was that.
“This is like having the head ref of the NHL stepping in, saying, ‘Wait a minute here’ and reviewing that call,” added Dr. Sarsfield.
“I am surprised at it,” he admitted. “I’ve been gently accused in the past 48 hours of sitting down with the Attorney General and having lunch with him, and getting things to go our way.
“But I’m actually surprised by it. I didn’t know this would happen.”
Dr. Sarsfield also said he’s “heartened” by the news the Attorney General’s office officially has made an application to the courts, arguing the appeal board erred with its decision.
“I think the decision by the appeal board was bad, and it seems the Ministry of the Attorney General thinks so, too,” remarked Dr. Sarsfield.
“There is no logic to it [the appeal board’s decision] and medical officers of health from all over were left asking, ‘What can we do if we can’t declare second-hand smoke a health hazard?’”
But he added just because the ministry has made an application, it is by no means a “slam dunk,” and the health unit currently is trying to get answers from its lawyer regarding just what the ramifications of a judicial review are.
Dr. Sarsfield hinted, however, the action “has potential” in turning around the decision that he did not have the authority to ban smoking in all enclosed public places within his jurisdiction.
The application to the Superior Court of Justice (Divisional Court) notes the province can’t appeal the decision directly to the review board, but does have that right under common law to apply for a review of the case by the court.
The ministry wants the court to toss out the February decision and order the appeal and review board to reconsider the case.
The application seeks: “An order quashing or setting aside the decision of the Health Services Appeal and Review Board dated Feb. 17, 2004,” and “An order remitting the matter to the same panel for a decision on the merits of appeals.”
The Attorney General’s office also said in its application that the appeal board made errors in its interpretation of the Health Protection and Promotion Act, the Tobacco Control Act, the Smoking in the Workplace Act, and Section 115 of the Municipal Act in arriving at its final decision
The Freedom of Choice Coalition members have all been issued papers on the matter, and have been named on the application made by the Attorney General.
—With notes from the Kenora Daily Miner & News
Fort Frances Times
Local News from Across the Rainy River District
